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ELCPartially AllowedChamber Summons application dated 27th October 2020 (Petition of 25th November 2014)· [2021] KEELC 2061 (KLR)

Omar Abdalla Jelani & 5 others v Attorney General &4 others [2021] KEELC 2061 (KLR)

Environment and Land Court of Kenya
15 September 2021
2,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Malindi threw out a Kshs 50 million legal fee award, ruling it was wildly excessive and must be recalculated.

What this practically means

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Executive summary

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By a Chamber Summons dated 27th October 2020, the Kenya Ports Authority sought review and setting aside of a ruling of the Deputy Registrar dated 17th August 2020, which taxed the Petitioners' Party and Party Bill of Costs at Kshs 50,126,353.00, principally by enhancing the instruction fees from Kshs 100,000/- to Kshs 50,000,000/-. The application was brought under Rule 11 of the Advocates Remuneration Order and was supported by an affidavit of Stephen Kyandih. The Petitioners opposed, relying on a consent order and the compensation of Kshs 1,319,586,674.55 paid by the National Land Commission for land acquired for the Lamu LAPSSET Corridor Project, and contending that the Taxing Master properly applied the principles in Joreth Ltd v Kigano & Associates. The Attorney General and the Ministry of Lands filed submissions supporting the application. The Court applied the settled principles that a Judge on a reference interferes only where the taxing officer erred in principle, and that the value of the subject matter for instruction fees must be drawn from the pleadings, judgment or settlement. The Court found the Taxing Master misdirected herself in adopting the entire compensation paid to all Project Affected Persons as the settlement value when only six Petitioners had sued, and that a 500-fold enhancement of the basic fee was manifestly excessive and a wrongful exercise of discretion, particularly as she had found the matter uncomplicated and compromised within two weeks. The Court allowed the application, set aside the taxation of 17th August 2020, remitted the Bill of Costs for taxation by a different Taxing Master, and ordered each party to bear their own costs of the application. Delivered at Malindi on 15th September 2021 by J.O. Olola J.

Key legal issues

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01

Whether the Taxing Master misdirected herself on the value of the subject matter

Holding

Yes - the value of the compromised suit could only be the compensation attributable to the six Petitioners, not the total paid to all 165 Project Affected Persons who never joined the suit.

Reasoning

The Taxing Officer first found that the value of the subject matter had not crystallised as there was no judgment, yet then proceeded to adopt the entire Kshs 1,319,586,674.55 compensation paid to all beneficiaries as the settlement value. The Petition was a representative suit but the other Project Affected Persons were never enjoined. The Court agreed with the Respondents that this was a misdirection in assessing the value of the suit property.

p. 4
02

Whether a 500-fold enhancement of the basic instruction fee was a proper exercise of discretion

Holding

No - increasing the basic fee from Kshs 100,000/- to Kshs 50,000,000/- was excessive and a wrongful exercise of discretion, amounting to an error of principle.

Reasoning

The Taxing Officer had herself found there was nothing complex in the matter, which was compromised within two weeks of filing. Applying the principles in Joreth Ltd v Kigano & Associates and the reasoning of Odunga J in the Ukwala Supermarket case, the amount involved is not the sole determinant of costs in public law litigation; complexity, novelty, importance and time expended carry more weight. A 500-times increase was manifestly excessive.

p. 4

Legal principles established

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  • A Judge on a reference will not interfere with a Taxing Officer's discretion unless the Taxing Officer erred in principle; questions solely of quantum are for the taxing officer except in exceptional cases.
  • The value of the subject matter for instruction fees is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may assess a just fee considering the nature, importance, complexity and other relevant circumstances.
  • A manifestly excessive enhancement of the basic instruction fee amounts to an error of principle justifying the Court's intervention.

Court orders

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  1. 1.The taxation of the Petitioners Party and Party Bill of Costs dated 14th October 2019 rendered on 17th August 2020 is set aside
  2. 2.The Bill of Costs is remitted back to the Taxing Master to be taxed by a different Taxing Master of the Court
  3. 3.Each party shall bear their own costs for this application

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(2); Schedule 6

Cases cited (6)

  • Joveth Limited –vs- Kigano & Associates
    Civil Appeal No. 66 of 1999 (2002) 1 EA 92
  • Kipkorir, Titoo & Kiara Advocates –vs- The Deposit Protection Fund Board
    (2005) eKLR
  • Arthur –vs- Nyeri Electricity Undertaking
    (1961) EA 497
  • Joreth Ltd –vs- Kigano & Associates
    (2002) eKLR
  • Peter Muthoka & Another –vs- Ochieng & 3 Others
    (2019) eKLR
  • Republic –vs- Commissioner of Domestic Taxes Ex-Parte Ukwala Supermarket Ltd & 2 Others
    (2018) eKLR
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order (reference from a Taxing Officer's decision to a Judge)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omar Abdalla Jelani & 5 others v Attorney General &4 others [2021] KEELC 2061 (KLR)", Case Analysis (2021). Chamber Summons application dated 27th October 2020 (Petition of 25th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2061/eng@2021-09-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.